The NBBU, a trade organisation for temporary employment agencies and flex workers in the Netherlands, said a recent Dutch Supreme Court on the collective labour agreement for temporary workers requires further legal analysis.

The Dutch Supreme Court recently ruled that the term remuneration (salary) within the European Union Temporary Agency Work Directive must be interpreted broadly so that elements such as bonuses, performance-related rewards and performance increases also fall under the concept of equal pay in Article 8 paragraph 1 Workers Allocation by Intermediaries Act (Waadi).

Article 8, paragraph 1 of Waadi stipulates that all workers must receive at least the same employment conditions as employees working in the same or equivalent positions in the service of the company where the provision of services takes place. This article implements the European Temporary Agency Work Directive, which includes the scope of the concept of equal pay for temporary agency workers, including the concept of ‘remuneration’.

The case concerns the staffing firm Dosign. A worker entered employment with Akzo Nobel, where he claimed an amount for outstanding wages from Dosign. This included the wage elements of a one-off payment, performance-related remuneration, holiday entitlements, public holidays, leave, performance increases and bonuses.

The Court of Appeal ruled which of these remuneration elements would fall within the scope of Article 8 paragraph 1. The Court ruled that there is a limitation on equal remuneration and that not all the requested remuneration elements fall under this, such as the elements of result-related remuneration, performance increase and bonus.

Ultimately, the Supreme Court ruled that this interpretation was too narrow and that the concept of ‘remuneration’ in the Directive must be interpreted broadly and in particular ‘includes all current or future benefits in cash or kind, provided that these are granted, even indirectly, by the employer to the employee by his employment, regardless of whether this is done based on an employment contract, by statutory provisions or voluntarily.’

This means that the Supreme Court gives a broad interpretation so that elements such as bonuses, performance-related rewards and performance increases also fall under the concept of equal pay in Article 8, paragraph 1, of the Waadi.

The employee in question was made available via an employment contract to which no temporary employment collective labour agreement applied. As a result, Article 8, paragraph 1 of Waadi applied.

According to the NBBU, the temporary employment agency collective labour agreement deviates from Article 8 paragraph 1 Waadi with the hirer’s remuneration.

“As a result, it is not immediately clear what the concrete consequences of the Supreme Court’s ruling are for the collective labour agreement for temporary workers,” the NBBU stated in a press release. “This requires a further legal analysis of the consequences of the temporary employment agency collective labour agreement and consultation with the unions, which we are currently focusing on. As soon as more is clear about this, we will inform our members.”

Hendarin Mouselli, partner at law firm VRF Advocaten, said in Flexmarkt, “The Supreme Court ruling has a major impact on the secondment and temporary employment sector. This also applies to the negotiating table for a new temporary employment agency collective labour agreement, but also to new legislation.”